Should American courts recognize the legitimacy of Shari’a law?

In a thought-provoking article at Christianity Today my professor and dissertation adviser John Witte, Jr., defends the intent of the Oklahoma legislation that prohibited the use of Shari’a law in state courts, legislation that has thus far been rejected on religious liberty grounds by federal courts. Witte describes three arguments generally used to defend the limited legitimacy of Shari’a law in the United States, rejecting each in turn.

The first reason has to do with religious liberty:

Both Western constitutional laws and international human rights norms give robust protection to the religious freedom of individuals and groups. Why deny peaceful Muslim citizens the freedom to opt out of state laws on sex, marriage, and family that run afoul of central faith commandments?

Witte responds,

This argument, however, falsely assumes that claims of conscience and religious free exercise must always trump. But this is hardly the case in modern democracies, even though religious freedom is cherished… Even the most devout religious believer enjoys no immunity from criminal laws against activities like polygamy, child marriage, female genital mutilation, or corporal discipline of wives. Religious freedom is not a license to engage in crime…. Most Western democracies readily allow religious officials to officiate at weddings, testify in divorce cases, assist in the adoption of a child, facilitate the rescue of a distressed family member, and the like. Some democracies also will uphold religious arbitration awards and mediation settlements over domestic issues. But that is a long way from delegating full legal power to religious bodies for governing the domestic affairs of their voluntary faithful

The second argument is essentially libertarian. It follows John Locke in asserting that marriage and the family are pre-political institutions that the state is bound to recognize but not meddle with. Why not, as some conservatives have suggested in response to the spreading phenomena of same-sex marriage, simply privatize the whole institution?

Witte’s response to this argument is an excellent explanation of why the state must be involved in the institution of marriage, both in terms of protection and regulation:

A comprehensive system of marriage and family law—let alone the many related legal systems of inheritance, trusts, family property, children’s rights, education, social welfare, and more—cannot long operate without coercive power. It needs police, prosecutors, and prisons; subpoenas, fines, and contempt orders; material, physical, and corporal sanctions. Moral suasion and example, coupled with communal approbation and censure, can certainly do part of the work. But a properly functioning marriage and family law system requires all these coercive instruments of government. And no religious authority can wield coercive power.

The third argument is based on the value of religious equality. As Witte affirms, federal and state courts permit deference to religious rules and tribunals on various points when it comes to Judaism and Christianity. Why should Islam be any different? Witte acknowledges that this argument is the most difficult to overcome. His basic response is to appeal to history. The exceptions granted to Jews and Christians have come about over a long process and for valid, particular reasons. Islam has not yet worked through that process. What’s more, by virtue of their embrace of democratic rights and freedoms Christians and Jews have earned a certain degree of deference that is not yet clearly due to Muslim communities:

[R]eligious communities, in turn, have to accommodate—or at least tolerate—the core constitutional and cultural values of their secular host nations. No Western nation will readily grant concessions to a religious community that rejects liberty, equality, and fraternity, or human rights, democracy, and rule of law.

Witte’s argument is spot-on in many respects, but Matthew Schmitz is not convinced. In a post at First Thoughts entitled “Christianity Today’s Dead-Wrong Defence of Anti-Sharia Laws” he argues that the Oklahoma law was less a rejection of special accommodation to Shari’a law than it was a restriction of religious freedom currently enjoyed by all religious groups.

If a marriage contract doesn’t run afoul of our laws or our Constitution, what does it matter whether or not it references Sharia? Should it be ruled out? If so, what about an otherwise identical contract that doesn’t reference reference Sharia? Witte’s argument is, at its best, an argument for inaction—not for the measures passed by states like Oklahoma and Kansas.

In a fuller statement of his argument in National Review, back in June, Schmitz made a persuasive case that laws targeted at Muslims accomplish nothing in the way of preserving the sovereignty of American law, and that, in fact, they do much to weaken religious liberty, alienate Muslims, and even threaten national security. His most important point is that there is no need for the sort of law Oklahoma wants, or that Witte defends.

Sharia, of course, does not grant all the rights that the U.S. Constitution does; neither does Christian canon law or Jewish Halakhic law (or English or French law, for that matter). But why should this fact prevent a court from honoring a contract made under the provisions of one of these “foreign” legal systems if the contract does not itself violate any U.S. or state regulations, laws, or constitutional provisions? Under one reading of the Kansas law, a contract that makes reference to canon law or sharia — but is otherwise perfectly legal — would be thrown out, while an identical one that makes no such reference would be upheld. The other possible reading of the law is that it only bars rulings based on foreign legal systems when the rulings themselves would violate constitutional rights. But in that case, as Professor Douglas Laycock of the University of Virginia Law School has argued, the law is meaningless, for courts will not tolerate or enforce violations of constitutional rights in any case.

In short, even if courts were to recognize the limited relevance of Shari’a law for members of Muslim communities, that would not prevent any particular individual from claiming and receiving the full protection of the rights and freedoms all Americans are afforded under the Constitution and the law of the land.

Of course, Witte knows this. As he writes in his article, the current accommodations made to Jewish courts do not offer the latter any form of coercion. Constitutional rights and freedoms always trump religious authority full stop. Thus Jewish courts “do not claim authority over all of Jewish sex, marriage, and family life. Having abandoned physical coercion and sanctions, they claim no authority beyond persuasion to stop a disputant from walking out of court and out of the Jewish community altogether.”

But the issue is complex. In theory an individual may be able to walk out of her religious community at any time, but in reality the threat of social and religious ostracism is far too great, especially for ethnic and religious communities not well integrated into American society. This seems to be the assumption underlying Witte’s reference to history. So while Schmitz thinks the fears of “creeping Shari’a” are overblown and worries about the more fundamental cause of religious liberty, a valid fear given the events of the last few years, Witte fears that the Islamic community has not yet clearly embraced American values with sufficient enthusiasm to warrant the sort of deference given to other communities, a seemingly equally valid fear given the reality on the ground.

It’s a difficult tension, and it’s by no means clear to me that there is an easy answer. I’ll be paying close attention to how it all plays out.